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[1978] 1 All ER 1132

Davis v Johnson

HOUSE OF LORDS

LORD DIPLOCK, VISCOUNT DILHORNE, LORD KILBRANDON, LORD SALMON AND LORD SCARMAN


16, 17 JANUARY, 9 MARCH 1978



Injunction - Exclusion of party from matrimonial home - County court - Respondent having proprietary interest in home - Joint tenancy - Man and woman living together as husband and wife in house of which they were joint tenants - Violence shown to woman by man - Application by woman for injunction containing provision excluding man from house - Whether county court having jurisdiction to exclude from house party who is joint tenant - Domestic Violence and Matrimonial Proceedings Act 1976, s 1(1).

Precedent - Court of Appeal - Binding effect of previous decisions of court - Power of court to depart from previous decision - Power to add exceptions to general rule of stare decisis - Whether Court of Appeal entitled to depart from previous decision.

Statute - Construction - Hansard - Reference to proceedings in Parliament as an aid to construction - Whether court permitted to refer to Hansard to ascertain intention of Parliament.

The appellant and the respondent were joint tenants of a council flat. Although they were not married, they lived together as man and wife. The appellant was the father of the respondent's baby girl who lived with them in the flat. Their relationship was, however, marred by violence. The respondent was frequently beaten by the appellant and subjected in at least two instances to extreme violence of a horrifying nature. As a result she fled with the child, then aged 2 1/2 to a refuge for 'battered wives', and subsequently applied to a county court, under s 1^a of the Domestic Violence and Matrimonial Proceedings Act 1976, for an injunction restraining the appellant from assaulting or molesting her or the child and ordering him to vacate the flat and not return. The injunction was granted. On 26 October, on the appellant's application, another county court judge rescinded so much of the order as required the appellant to leave the flat. The respondent appealed to the Court of Appeal (Page 841, ante) which, having held, by a majority, that the court was not bound by its earlier decisions in B v B (Page 821, ante) and Cantliff v Jenkins (Page 836, ante), allowed the appeal and restored the order requiring the appellant to vacate the flat. The appellant appealed to the House of Lords, contending, inter alia, that s 1 of the 1976 Act did not confer on a county court jurisdiction to exclude a person from premises in which he had a proprietary interest.

^a     Section 1 is set out at p 1140 d to f, post

Held - Section 1 did not affect property rights but it could affect the enjoyment of those rights and, having regard to the clear and unambiguous language of s 1 and the intention of Parliament in enacting it, ie to protect a party to a marriage or a relationship akin to a marriage from domestic violence and conduct by the other party which put at risk the first party's security or sense of security in the home, s 1(1)(c) was to be construed as investing a county court, when dealing with an originating application alleging domestic violence, with power to grant the applicant an injunction excluding the respondent from the premises in which the parties had been living, irrespective of the respondent's proprietary rights in the premises. The appeal would therefore be dismissed (see p 1145 a to e, p 1147 f, p 1149 d f, p 1150 h j, p 1151 c, p 1154 b, p 1156 b to d and p 1157 e, post); B v B p 821, ante, and Cantliff v Jenkins p 836, ante, overruled.

[1978] 1 All ER 1132 at 1133

Per Curiam. (i) Because of the position of the Court of Appeal as an intermediate appellate court, with an increasing membership and number of divisions in which it sits, and the consequent need for the legal certainty resulting from the binding effect of previous decisions, the rule that, subject to certain clearly defined exceptions, the Court of Appeal is bound by its previous decisions should be re-affirmed expressly and unequivocably (see p 1139 h to p 1140 a, p 1146 e f, p 1149 f, p 1152 f, p 1153 f and p 1157 e f, post); Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 approved.

(ii) It has always been a well-established and salutary rule that Hansard can never be relied on by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose (see p 1140 h, p 1147 a b e, p 1149 f, p 1153 g and p 1157 f to h, post); dictum of Lord Reid in Beswick v Beswick [1967] 2 All ER at 1202 applied.

Decision of the Court of Appeal p 841, ante affirmed.

Notes

For the jurisdiction of the county court to grant matrimonial injunctions, see Supplement to 13 Halsbury's Laws (4th Edn) para 1228A.

For the binding force of decisions of the Court of Appeal, see 22 Halsbury's Laws (3rd Edn) 799-801, 802, paras 1687, 1690, and for cases on the subject, see 30 Digest (Reissue) 269-274, 763-804.

For the Domestic Violence and Matrimonial Proceedings Act 1976, s 1, see 46 Halsbury's Statutes (3rd Edn) 714.

Cases referred to in opinions

B v B p 821, ante, [1978] 2 WLR 160, CA.

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58, [1967] 3 WLR 932, HL, Digest (Cont Vol C) 903, 181a.

Binions v Evans [1972] 2 All ER 70, [1972] Ch 359, [1972] 2 WLR 729, 23 P & CR 192, CA, Digest (Cont Vol D) 814, 2771a.

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810, [1975] AC 591, [1975] 2 WLR 513, [1975] 2 Lloyd's Rep 11, HL, Digest (Cont Vol D) 108, 1591a.

Bonsor v Musicians' Union [1955] 3 All ER 518, [1956] AC 104, [1955] 3 WLR 788, HL, 45 Digest (Repl) 539, 1213.

Broome v Cassell & Co Ltd [1971] 2 All ER 187, [1971] 2 QB 354, [1971] 2 WLR 853, CA, on appeal sub nom Cassell & Co Ltd v Broome [1972] 1 All ER 801, [1972] AC 1027, [1972] 2 WLR 645, HL, 17 Digest (Reissue) 82, 17.

Cantliff v Jenkins p 836, ante, [1978] 2 WLR 177, CA.

Farrell v Alexander [1976] 1 All ER 129, [1976] QB 345, [1975] 3 WLR 642, CA; rvsd [1976] 2 All ER 721, [1977] AC 59, [1976] 3 WLR 145, HL.

Inland Revenue Comrs v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637, 175 LT 221, 27 Tax Cas 331, HL, 28(1) Digest (Reissue) 138, 414.

Miliangos v George Frank (Textiles) Ltd [1975] 1 All ER 1076, [1975] QB 487, [1975] 2 WLR 555, CA; affd [1975] 3 All ER 801, [1976] AC 443, [1975] 3 WLR 758, [1976] 1 Lloyd's Rep 201, HL, Digest (Cont Vol D) 691, 64c.

Morelle Ltd v Wakeling [1955] 1 All ER 708, [1955] 2 QB 379, [1955] 2 WLR 672, CA, 30 Digest (Reissue) 272, 792.

Perrin v Morgan [1943] 1 All ER 187, [1943] AC 399, 112 LJCh 81, 168 LT 177, HL, 48 Digest (Repl) 599, 5708.

Schorsch Meier GmbH v Hennin [1975] 1 All ER 152, [1975] QB 416, [1974] 3 WLR 823, [1975] 1 Lloyd's Rep 1, CA, Digest (Cont Vol D) 691, 64b.

Tanner v Tanner [1975] 3 All ER 776, [1975] 1 WLR 1346, CA, Digest (Cont Vol D) 578, 1732a.

Tarr v Tarr [1972] 2 All ER 295, [1973] AC 254, [1972] 2 WLR 1068, 136 JP 484, HL, Digest (Cont Vol D) 393, 708.

[1978] 1 All ER 1132 at 1134

Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209, [1975] Ch 146, [1974] 2 WLR 176, 27 P & CR 24, CA, Digest (Cont Vol D) 116, 602b.

United Railways of the Havana and Regla Warehouses Ltd, Re [1960] 2 All ER 332, [1961] AC 1007, [1960] 2 WLR 969, HL, 11 Digest (Reissue) 489, 919.

Winter Garden Theatre (London) Ltd v Millenium Productions Ltd [1947] 2 All ER 331, [1948] AC 173, [1947] LJR 1422, 177 LT 349, HL, 45 Digest (Repl) 201, 83.

Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, [1944] KB 718, 113 LJKB 513, 171 LT 113, CA; affd [1946] 1 All ER 98, [1946] AC 163, 115 LJKB 63, HL, 30 Digest (Reissue) 269, 765.

Appeal

On 11 October 1977 the respondent, Jennifer Therese Davis, applied to the Brentford County Court for an injunction under s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 containing the following provisions: (i) that the appellant, Nehemiah Johnson, should not assault, threaten, molest or otherwise interfere with the respondent, and (ii) that the appellant should vacate the flat at 13 Nisbet House, Homerton Road, Hackney, London E9 ('the premises') of which the parties were joint tenants and not return thereto. On 11 October his Honour Judge Barr made the order for non-molestation but adjourned the application for the order excluding the appellant from the premises. On 18 October Mr JG Paulusz, sitting as a deputy circuit judge, made an order that the appellant should vacate the premises and not return thereto, and attached a power of arrest to the order. On 24 October, following the decision of the Court of Appeal in Cantliff v Jenkins (Page 836, ante), the appellant applied for an order that the order of 18 October excluding him from the premises be suspended and that he be permitted to re-enter. On 26 October his Honour Judge Bernard Lewis rescinded so much of the order of 18 October as required the appellant to vacate the premises and not return thereto. The respondent appealed to the Court of Appeal against the order of 26 October on the ground, inter alia, that the judge had been wrong in law in ruling that the 1976 Act did not give him power to exclude a party from premises of which he was a joint tenant The appellant filed a cross-notice of appeal against the order of 18 October on the ground that the deputy circuit judge had misdirected himself in holding that he had power to exclude the appellant from the premises notwithstanding that the appellant and the respondent were joint tenants of the premises. On 28 November 1977 the Court of Appeal (Page 841, ante) (Lord Denning MR, Sir George Baker P and Shaw LJ, Goff and Cumming-Bruce LJJ dissenting) allowed the appeal and restored the order of the deputy circuit judge. The appellant appealed to the House of Lords. The facts are set out in the opinion of Lord Diplock.

Joseph Jackson QC and David McIntyre for the appellant.

Lionel Swift QC and Judith Parker for the respondent.

Their Lordships took time for consideration

9 March 1978. The following opinions were delivered.



LORD DIPLOCK.

My Lords, this appeal is from a judgment of the Court of Appeal (Page 836, ante) which, by a majority of three out of the five members who sat (Lord Denning MR, Sir George Baker P and Shaw LJ, Goff and Cumming-Bruce LJJ dissenting) purported to overrule two recent previous decisions of its own as to the meaning of a statute.

Put in a nutshell, the basic question of statutory construction that has given rise to

[1978] 1 All ER 1132 at 1135

so acute a conflict of judicial opinion is whether s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 does no more than provide additional, expeditious and more easily available remedies to prevent threatened invasions of existing legal rights originating from other sources, whether statutory or at common law, or whether it also, of itself, creates new legal rights as well as new remedies for threatened invasion of them. The former I will call the 'narrower', the latter the 'broader' meaning. In B v B (Page 821, ante), on 13 October 1977, the Court of Appeal consisting of Megaw, Bridge and Waller LJJ decided unanimously that it bore the narrower meaning: it gave additional remedies but created no new legal rights. In Cantliff v Jenkins, (Page 836, ante) on 20 October 1977, the Court of Appeal then consisting of Stamp, Orr and Ormrod LJJ, while holding itself to be bound by the decision in B v B (Page 821, ante) since it regarded that case as indistinguishable, took occasion, again unanimously, to express its concurrence with the reasoning of Bridge LJ in B v B (Page 821, ante) and added, for good measure, an additional reason in support of the narrower meaning placed on the section in that previous judgment. For my part, I think that Cantliff v Jenkins (Page 836, ante) was distinguishable from B v B (Page 821, ante) but it is conceded that the facts in the instant case are indistinguishable from those held by the Court of Appeal in Cantliff v Jenkins (Page 836, ante) to be relevant to its decision in that case. So, when the instant case came before the Court of Appeal, there was a preliminary question which fell to be determined; and that was whether the court was bound by its previous decisions in B v B (Page 821, ante) and Cantliff v Jenkins (Page 836, ante). The view of a majority of three was that it was not so bound, though their individual reasons for so holding were not identical. This opened the way to a fresh consideration of the meaning of the statute by all five members. On this question they were divided four to one. Cumming-Bruce LJ sided with the six Lords Justices who in the two previous cases had adopted the narrower meaning of s 1; the remainder were of opinion that it bore the wider meaning and did create new legal rights as well as new remedies for threatened violation of them. So, of the members of the Court of Appeal who sit regularly in civil matters (of whom there are now 17) there were seven who had adopted the narrower meaning of the section, three who, together with the President of the Family Division, had preferred the wider meaning, and a silent minority of seven regular members of the Court of Appeal whose views had not been expressed by the conclusion of the hearing of the instant case in the Court of Appeal.

I draw attention to this arithmetic because if the view expressed by Lord Denning MR, Sir George Baker P and Shaw LJ that the Court of Appeal was not bound by its own previous decisions is correct, this would apply to its decision in the instant case; and had there been no appeal to your Lordships House to cut the Gordian knot, it would have been open to the Court of Appeal in any subsequent cases to give effect to the wider or the narrower construction of s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 according to the preference of the majority of the members who happened to be selected to sit on that particular appeal.

My Lords, the difference of judicial opinion as to the true construction of the section has spilled over into this House; for although I agree that on the facts of this case it may be that the order of the Court of Appeal could be upheld, and that the actual decision in Cantliff v Jenkins (Page 836, ante) was wrong, I nevertheless find myself regretfully compelled to part company with the rest of your Lordships and to align myself with the seven Lords Justices who have expressed their preference for the narrower meaning. This cannot affect the disposition of the instant appeal nor will it affect the application of the 1976 Act in subsequent cases; for the section means what a majority of this House declares it means. But it does make the score of appellate opinions in favour of the broader and the narrower meanings eight all.

Although on the question of the construction of s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 this House has not been able to reach unanimity,

[1978] 1 All ER 1132 at 1136

nevertheless on what in the instant case was the first question for the Court of Appeal, viz whether it was bound by its own previous decisions, I understand us to be unanimous, so I too will deal with it first.

So far as civil matters are concerned the law on this question is now clear and unassailable. It has been so for more than 30 years. I do not find it necessary to trace the origin and development of the doctrine of stare decisis before the present structure of the courts was created in 1875^b. In that structure the Court of Appeal in civil actions has always played, save in a few exceptional matters, an intermediate and not a final appellate role. The application of the doctrine of stare decisis to decisions of the Court of Appeal was the subject of close examination by a Court of Appeal composed of six of its eight regular members in Young v Bristol Aeroplane Co Ltd. The judgment of the court was delivered by Lord Greene MR. Its effect is summarised accurately in the headnote as being ([1944] KB 718 at 718, 719):

^b     Supreme Court of Judicature Acts 1873 and 1875

'The Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate jurisdiction, and the "full" court is in the same position in this respect as a division of the court consisting of three members. The only exceptions to this rule are: --(1.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2.) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; (3.) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.'

The rule as expounded in the Bristol Aeroplane case was not new in 1944. It had been acted on on numerous occasions and had, as recently as the previous year, received the express confirmation in this House of Viscount Simon LC with whose speech Lord Atkin agreed: see Perrin v Morgan ([1943] 1 All ER 187 at 189, [1943] AC 399 at 405). Although prior to 1944 there had been an occasional deviation from the rule, which was why a court of six was brought together to consider it, there has been none since. It has been uniformly acted on by the Court of Appeal and re-affirmed, notably in a judgment of a Court of Appeal of five, of which Lord Denning MR as Denning LJ was a member, in Morelle Ltd v Wakeling. This judgment emphasised the limited scope of the per incuriam exception to the general rule that the Court of Appeal is bound by its own previous decisions. The rule has also been uniformly accepted by this House as being correct. Because until recently it has never been questioned the acceptance of the rule has generally been tacit in the course of recounting the circumstances which have rendered necessary an appeal to your Lordships' House; but occasionally the rule has been expressly referred to, as by Viscount Simon in the Bristol Aeroplane case ([1946] 1 All ER 98 at 100, [1946] AC 163 at 169) itself and by Lord Morton of Henryton and Lord Porter in Bonsor v Musicians' Union ([1955] 3 All ER 518 at 520, 525, [1956] AC 104 at 120, 128).

Furthermore, the provisions of the Administration of Justice Act 1969 which authorise 'leap frog' appeals in civil cases direct from the High Court to this House are based on the tacit assumption that the rule as stated in the Bristol Aeroplane case is correct. One of the two grounds on which a High Court judge may authorise a 'leap frog' appeal is if he is satisfied that a point of law of general importance involved in his decision (s 12(3)(b))--

'is one in respect of which the judge is bound by a decision of the Court of

[1978] 1 All ER 1132 at 1137

Appeal or of the House of Lords in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the House of Lords (as the case may be) in those previous proceedings.'

The justification for by-passing the Court of Appeal when the decision by which the judge is bound is one given by the Court of Appeal itself in previous proceedings is because that court also is bound by the decision, if the point of law was fully considered and not passed over per incuriam.

So the rule as it had been laid down in the Bristol Aeroplane case had never been questioned thereafter until, following on the announcement by Lord Gardiner LC in 1966^c that the House of Lords would feel free in exceptional cases to depart from a previous decision of its own, Lord Denning MR conducted what may be described, I hope without offence, as a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed on its liberty of decision by the application of the rule laid down in the Bristol Aeroplane case to its previous decisions; or, for that matter, by any decisions of this House itself of which the Court of Appeal disapproved: see Broome v Cassell & Co Ltd; Schorsch Meier GmbH v Hennin. In his judgment in the instant appeal, Lord Denning MR refers to a number of cases after 1966 in which he suggests that the Court of Appeal has either refused to apply the rule as laid down in the Bristol Aeroplane case or has added so many other exceptions to the three that were stated by Lord Greene MR that it no longer operates as a curb on the power of the Court of Appeal to disregard any previous decision of its own which the majority of those members who happen to be selected to sit on a particular appeal think is wrong. Such, however, has not been the view of the other two members of the Court of Appeal who were sitting with Lord Denning MR in any of those cases to which he refers. Where they felt able to disregard a previous decision of the Court of Appeal this was only because, in their opinion, it fell within the first or second exception stated in the Bristol Aeroplane case. When Miliangos v George Frank (Textiles) Ltd was before the Court of Appeal Lord Denning MR appears to have reluctantly recanted. That was a case in which Bristow J had held that he was bound by a decision of this House in Re United Railways of the Havana and Regal Warehouses Ltd, despite the fact that the Court of Appeal had purported to overrule it in the Schorsch Meier case. On appeal from this decision Lord Denning MR disposed of the case by holding that the Court of Appeal was bound by its own previous decision in the Schorsch Meier case. He added ([1975] 1 All ER 1076 at 1085, [1975] QB 487 at 503):

^c     Note [1966] 3 All ER 77, [1966] 1 WLR 1234

'I have myself often said that this court is not absolutely bound by its own decisions and may depart from them just as the House of Lords from theirs: but my colleagues have not gone so far. So that I am in duty bound to defer to their view.'

The reasons why his colleagues had not agreed to follow him are plain enough. In an appellate court of last resort a balance must be struck between the need on the one side for the legal certainty resulting from the binding effect of previous decisions and on the other side the avoidance of undue restriction on the proper development of the law. In the case of an intermediate appellate court, however, the second desideratum can be taken care of by appeal to a superior appellate court, if reasonable means of access to it are available; while the risk to the first desideratum, legal

[1978] 1 All ER 1132 at 1138

certainty, if the court is not bound by its own previous decisions grows ever greater with increasing membership and the number of three-judge divisions in which it sits, as the arithmetic which I have earlier mentioned shows. So the balance does not lie in the same place as in the case of a court of last resort. That is why Lord Gardiner LC's announcement^d about the future attitude towards precedent of the House of Lords in its judicial capacity concluded with the words: 'This announcement is not intended to affect the use of precedent elsewhere than in this House.'

^d     Note [1966] 3 All ER 77, [1966] 1 WLR 1234

Much has been said in the instant case about the delay and expense which would have been involved if the Court of Appeal had treated itself as bound by its previous decisions in B v B (Page 821, ante) and Cantliff v Jenkins (Page 836, ante), so as to make it necessary for the respondent to come to this House to argue that those decisions should be overruled. But a similar reasoning could also be used to justify any High Court or county court judge in refusing to follow a decision of the Court of Appeal which he thought was wrong. It is true that since the appeal in the instant case was from the county court, not the High Court, the 'leap-frog' procedure was not available, but since it was conceded that the instant case was indistinguishable from Cantliff v Jenkins (Page 836, ante), there was no need for anything but the briefest of hearings in the Court of Appeal. The appeal to this House could in that event have been heard before Christmas instead of in January; and at less cost. The decision could have been announced at once and the reasons given later.

Of the various ways in which Lord Denning MR's colleagues had expressed the reasons for continuing to regard the rule laid down in the Bristol Aeroplane case as salutary in the interest of the administration of justice, I select those given by Scarman LJ, in Tiverton Estates Ltd v Wearwell Ltd ([1974] 1 All ER 209 at 228, 229, [1975] Ch 146 at 172, 173), in the Court of Appeal:

'The Court of Appeal occupies a central, but, save for a few exceptions, an intermediate position in our legal system. To a large extent, the consistency and certainty of the law depend on it. It sits almost always in divisions of three: more judges can sit to hear a case, but their decision enjoys no greater authority than a court composed of three. If, therefore, throwing aside the restraints of Young v Bristol Aeroplane Co Ltd, one division of the court should refuse to follow another because it believed the other's decision to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty. The appropriate forum for the correction of the Court of Appeal's errors is the House of Lords, where the decision will at least have the merit of being final and binding--subject only to the House's power to review its own decisions. The House of Lords, as the court of last resort, needs this power of review: it does not follow that an intermediate appellate court needs it; and, for the reasons I have given, I believe the Court of Appeal is better without it, save in the exceptional circumstances specified in Young v Bristol Aeroplane Co Ltd.'

My own reason for selecting this passage out of many is because in the following year in Farrell v Alexander Scarman LJ again referred to it in dissociating himself from the view, to which Lord Denning MR had by then once again reverted, that the Court of Appeal was not bound by any previous decision of its own which it was satisfied was wrong. What Scarman LJ there said was ([1976] 1 All ER 129 at 147, [1976] QB 345 at 371):

'... I have immense sympathy with the approach of Lord Denning MR. I decline to accept his lead only because I think it damaging to the law in the long term--though it would undoubtedly do justice in the present case. To some

[1978] 1 All ER 1132 at 1139

it will appear that justice is being denied by a timid, conservative adherence to judicial precedent. They would be wrong. Consistency is necessary to certainty--one of the great objectives of law. The Court of Appeal--at the very centre of our legal system--is responsible for its stability, its consistency, and its predictability: see my comments in Tiverton Estates Ltd v Wearwell Ltd [[1974] 1 All ER 209 at 228, [1975] Ch 146 at 172]. The task of law reform, which calls for wide-ranging techniques of consultation and discussion that cannot be compressed into the forensic medium, is for others. The courts are not to be blamed in a case such as this. If there be blame, it rests elsewhere.'

When Farrell v Alexander reached this House Scarman LJ's way of putting it was expressly approved by my noble and learned friends, Viscount Dilhorne ([1976] 2 All ER 721 at 731, [1977] AC 59 at 81) and Lord Simon of Glaisdale ([1976] 2 All ER 721 at 742, [1977] AC 59 at 92), while the other member of this House who adverted to the question of stare decisis, Lord Russell of Killowen ([1976] 2 All ER 721 at 753, [1977] AC 59 at 104, 105), expressed his 'unreserved disapproval' of that part of Lord Denning MR's judgment in which he persisted in his heterodox views on the subject.

In the instant case Lord Denning MR in effect reiterated his opinion that the Court of Appeal in relation to its own previous decisions should adopt the same rule as that which the House of Lords since the announcement in 1966^e has applied in relation to its previous decisions. Sir George Baker P on the other hand preferred to deal with the problem of stare decisis by adding a new exception to the rule in the Bristol Aeroplane case which he formulated as follows:

^e     Note [1966] 3 All ER 77, [1966] 1 WLR 1234

'The court is not bound to follow a previous decision of its own if satisfied that that decision was clearly wrong and cannot stand in the face of the will and intention of Parliament expressed in simple language in a recent Act passed to remedy a serious mischief or abuse, and further adherence to the previous decision must lead to injustice in the particular case and unduly restrict proper development of the law with injustice to others.'

Shaw LJ phrased the exception rather differently. He said (See p 878, ante):

'It would be in some such terms as that the principle of stare decisis should be relaxed where its application would have the effect of depriving actual and potential victims of violence of a vital protection which an Act of Parliament was plainly designed to afford to them, especially where, as in the context of domestic violence, that deprivation must inevitably give rise to an irremediable detriment to such victims and create in regard to them an injustice irreversible by a later decision of the House of Lords.'

My Lords, the exception as stated by Sir George Baker P would seem wide enough to cover any previous decision on the construction of a statute which the majority of the court thought was wrong and would have consequences that were regrettable, at any rate if they felt sufficiently strongly about it. As stated by Shaw LJ the exception would appear to be what might be termed a 'one-off' exception. It is difficult to think of any other statute to which it would apply. In my opinion, this House should take this occasion to re-affirm expressly, unequivocably and unanimously that the

[1978] 1 All ER 1132 at 1140

rule laid down in the Bristol Aeroplane case as to stare decisis is still binding on the Court of Appeal.

I come now to the construction of s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 under which the respondent, Miss Davis, sought an injunction against the appellant, Mr Johnson, to exclude him from the council flat in Hackney of which they were joint tenants. The relevant facts can be stated briefly. The parties who were unmarried had been living together there as man and wife for about three years, together with a child of their illicit union, now aged three. He treated her with appalling violence: she was in fear of her life and fled the premises on 18 September 1977 with the child. She found asylum at a refuge for women in her predicament. It was grossly overcrowded, insanitary and uncomfortable. On 11 October she applied to the Brentford County Court under s 1 of the 1976 Act for injunctions restraining the appellant from using violence towards her and ordering him to vacate the flat and not to return to it. These she was granted initially but after the decision in Cantliff v Jenkins (Page 836, ante) the injunction excluding the appellant from the flat was withdrawn. Against its withdrawal the instant appeal to the Court of Appeal was brought, it being conceded that the respondent was entitled to the injunctions against violence.

Section 1 under which the respondent's application was made reads as follows:

'(1) Without prejudice to the jurisdiction of the High Court, on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely,--(a) a provision restraining the other party to the marriage from molesting the applicant; (b) a provision restraining the other party from molesting a child living with the applicant; (c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included; (d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home; whether or not any other relief is sought in the proceedings.

'(2) Subsection (1) above shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.'

I am in agreement with your Lordships that on the facts that I have summarised the county court judge had jurisdiction to grant an injunction excluding the appellant temporarily from the flat of which he and the respondent were joint tenants. I reach this conclusion notwithstanding that, in disagreement with your Lordships, I remain unpersuaded that s 1(2) bears the broader meaning rather than the narrower one. As my opinion that the narrower meaning is to be preferred will not prevail I shall resist the temptation to add to or elaborate on the reasons given by Bridge LJ in B v B (See pp 823 et seq, ante) for that preference. There are, however, two initial matters of more general application to the interpretation of statutes that arise out of the judgment of the Court of Appeal. On these I wish to comment.

I have had the advantage of reading what my noble and learned friends, Viscount Dilhorne and Lord Scarman, have to say about the use of Hansard as an aid to the construction of a statute. I agree with them entirely and would add a word of warning against drawing too facile an analogy between proceedings in the Parliament of the United Kingdom and those travaux preparatoires which may be looked at by the courts of some of our fellow member states of the European Economic Community to resolve doubts as to the interpretation of national legislation or by the European

[1978] 1 All ER 1132 at 1141

Court of Justice, and consequently by English courts themselves, to resolve doubts as to the interpretation of community legislation. Community legislation, viz regulations and directives, are required by the EEC Treaty to state reasons on which they are based, and when submitted to the EEC Council in the form of a proposal by the EEC Commission the practice is for them to be accompanied by an explanatory memorandum by the Commission expanding the reasons which appear in more summary form in the draft regulation or directive itself. The explanatory memoranda are published in the Official Journal together with the proposed regulations or directives to which they relate. These are true travaux preparatoires: they are of a very different character from what is said in the passion or lethargy of Parliamentary debate; yet a survey of the judgments of the European Court of Justice will show how rarely that court refers even to these explanatory memoranda for the purpose of interpreting community legislation.

A closer analogy with travaux preparatoires is to be found in reports of such bodies as the law commissions and committees or commissions appointed by government or by either House of Parliament to consider reforming particular branches of the law. Where legislation follows on a published report of this kind the report may be used as an aid to identify the mischief which the legislation is intended to remedy, but not for the purpose of construing the enacting words in such a way as to conform with recommendations made in the report as to the form the remedy should take: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG. This does not mean, of course, that one must shut one's eyes to the recommendations, for a suggestion as to a remedy may throw light on what the mischief itself is thought to be; but it does not follow that Parliament when it legislates to remedy the mischief has adopted in their entirety or, indeed, at all the remedies recommended in the report. This is well illustrated in the instant case. The report on which the Domestic Violence and Matrimonial Proceedings Act 1976 was undoubtedly based is the Report from the Select Committee of the House of Commons on Violence in Marriage published in July 1975^f. It deals almost exclusively with the plight of married women exposed to violence by their husbands and the resulting homelessness for themselves and their children. In the single paragraph referring to unmarried couples described (regrettably I think) as 'co-habitees' the members of the committee disclaim any particular knowledge of the problem, on which they had not taken evidence. Nevertheless they recommended that so far as the grant of injunctions against violence by their paramours was concerned mistresses should have the same procedural rights as married women. As regards homelessness of mistresses, however, all the committee recommended was that the Guardianship of Minor Acts should be amended to provide that, where there was a child of the illicit union of which paternity could be proved, the court should have power to make orders giving the mistress while she was caring for the children during their minority sole right of occupation of the premises which had been occupied by the unmarried couple as their home. Whatever s 1(2) of the 1976 Act may do it does not do that.

^f     H of C Papers (1974-75) 553-i

I conclude by explaining briefly my own reasons for dismissing this appeal. I understand your Lordships to agree in holding, as I myself would hold, that s 1(1) leaves the substantive law relating to husbands and wives unchanged. All that it does is to provide them with a simpler, speedier, more widely available and more effective remedy for threatened violation of legal rights either already existing when the Act was passed or newly created by ss 3 and 4. What I cannot accept is that s 1(2), in contrast to s 1(1), was intended to change the substantive law by authorising county court judges to make drastic inroads on the respective legal rights of parties to an illicit union to occupy the premises in which they have been living together as man and wife, yet without any statement in the subsection of the limits, if any, that

[1978] 1 All ER 1132 at 1142

are imposed on those inroads. Nevertheless under the existing substantive law a mistress is entitled to protection against the tort of assault, and if, as in the instant case, she is joint tenant with her paramour of the premises in which she has been living with him she has a legal right to continue in peaceful occupation of them. This latter right of hers is one that he has no right to disturb, and his own corresponding right of occupation is one that can be lawfully exercised only in a manner that does not interfere with it. Where the county court judge is satisfied that there is grave danger that if the mistress returns to the premises her paramour will assault her or her child then, as ancillary to an injunction against threatened violence, the judge would, in my view, have jurisdiction to make an order under s 1(1)(c) excluding him from the premises, but such an order could properly continue only so long as there was danger that if permitted to return he would assault his mistress or her child.

It is the mistress's legal right under a joint tenancy to continue in occupation of the premises that distinguishes the instant case from B v B. The same distinction could have been drawn in Cantliff v Jenkins (Page 836, ante), which, for this reason, I think was wrongly decided.

For these reasons I too would dismiss this appeal.



VISCOUNT DILHORNE.

My Lords, the result of this appeal depends on the meaning and effect of s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976. Its terms must be considered against the background of the Matrimonial Homes Act 1967 which conferred on a spouse not entitled to occupy a dwelling house by virtue of any estate or interest or contract or enactment the right, if in occupation, not to be evicted or excluded from it by the other spouse except with the leave of the court, and the right, if not in occupation, with the leave of the court to enter into and occupy it. Section 1(2) of the 1967 Act provided that so long as one spouse had rights of occupation, either of the spouses might apply to the court for an order 'declaring, enforcing, restricting or terminating those rights or regulating the exercise by either spouse of the right to occupy the dwelling house' and s 1(3) provided that on an application under the section the court might make such order as it thought just and reasonable having regard to the conduct of the spouses toward each other, to their financial resources and to the needs of the children.

In Tarr v Tarr it was held that this section did not give the court power to prohibit, though it gave power to regulate, the occupation of the matrimonial home by a spouse legally entitled to occupy it. Lord Pearson in the course of his opinion, with which the other members of the House agreed, pointed out that if the 1967 Act enabled a court to prohibit the occupation by a tenant of his house it made a very drastic inroad into the common law rights of the property-owning spouse. He said ([1972] 2 All ER 295 at 299, [1973] AC 254 at 264):

'According to a well-established principle of construction, an interpretation which has this effect ought not to be adopted unless the enactment plainly bears that meaning. That principle has to be set against the possible practical advantages of a liberal interpretation which may support its claims to be the reasonable interpretation. In the end one has to read the enactment in its context and come to a conclusion as to what it means.'

That drastic inroad into the common law rights of property has now been made by the amendment of s 1(2) of the 1967 Act by s 3 of the 1976 Act, which came into force on 1 June 1977. Since then, as a result of the amendments made, a spouse can get an

[1978] 1 All ER 1132 at 1143

order excluding the other spouse from the matrimonial home even though that spouse is the owner or the tenant of it, and an order requiring that spouse to permit the spouse applying for the order to enter and to remain in the home.

Section 1 of the 1976 Act has the marginal not 'Matrimonial injunctions in the county court' and sub-s (1) begins with the words 'Without prejudice to the jurisdiction of the High Court', so the jurisdiction of the High Court is not affected. Bridge LJ in B v B (See p 825, ante) thought that if the section altered the substantive law affecting parties' rights to occupy premises, it would produce the astonishing result that the substantive law in the county court was different from that to be applied in the High Court. So far as spouses are concerned, I do not think that the section in any way extends the substantive law as now, since the amendment of the 1967 Act, applied in the High Court. It provides that a county court has jurisdiction to grant an injunction containing the following provisions:

'(a) a provision restraining the other party to the marriage from molesting the applicant; (b) a provision restraining the other party from molesting a child living with the applicant; (c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included; (d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home; whether or not any other relief is sought in the proceedings.'

Injunctions restraining one spouse from molesting the other are and were obtainable in the Family Division of the High Court and in the county courts designated for divorce work; and, since the 1976 Act came into force, there is power under the Matrimonial Homes Act 1967 to grant in the High Court an injunction containing the provisions set out in paras (c) and (d) above against a spouse who is the owner or tenant of the home.

So far as spouses are concerned, the changes made by s 1 are that injunctions containing these provisions are made obtainable in any county court, the requirement in the Family Division that proceedings for divorce or judicial separation must be pending or an undertaking given to start them is dispensed with and, in relation to applicants for injunctions under the section, the requirement in the county court that in addition to a claim for an injunction there must be a claim for some other relief is also dispensed with. Subsection (2) of s 1 provides that sub-s (1) shall apply to a man and woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and that any reference to the matrimonial home shall be construed accordingly. Their home, despite the fact that they are unmarried, is to be treated as the matrimonial home.

It is in relation to the application of sub-s (2) to sub-s (1) that difficulty has arisen. Since 1 June 1977, when the 1976 Act came into force, there have been three decisions of the Court of Appeal on it. In the first of them, B v B (Page 821, ante), Megaw, Bridge and Waller LJJ held that sub-s (1) did not give a county court power to exclude from a council house a man who was the tenant of it at the instance of the woman with whom he had been living. In the second, Cantliff v Jenkins (Page 836, ante), Stamp, Orr and Ormrod LJJ rightly held that they were bound by the decision in B v B (Page 821, ante) but made it clear that if they had not been bound by it they would have reached the same conclusion.

To hear the appeal in the present case a court of five was convened, a court described by Lord Denning MR as 'a court of all the talents'. Its members were Lord Denning MR, Sir George Baker P, Goff, Shaw and Cumming-Bruce LJJ. Lord Denning MR, Sir George Baker P and Shaw LJ did not regard themselves as bound by the previous

[1978] 1 All ER 1132 at 1144

decisions of the court. They held that an injunction could be granted to an unmarried applicant excluding the man with whom she had been living from the occupation of the premises of which he was with her a joint tenant. Goff LJ would have joined with them had he not felt bound by the previous decisions. Cumming-Bruce LJ agreed with the decisions in the earlier cases.

So seven eminent Lords Justices have come to one conclusion and the Master of the Rolls, the President and two Lords Justices take the opposite view; and there is a division of opinion in the House. Few, if any, sections of a modern Act can have given rise to so much litigation in so short a time and to such a difference of opinion. A few more words in the Act would have avoided all this litigation and I regard it as surprising, in view of the issue raised in Tarr v Tarr, that it was not made clear beyond doubt whether or not a county court was to be enabled by s 1(1) of the 1976 Act to grant an injunction excluding a man at the instance of the woman with whom he had been living as if she was his wife from the occupation of a house which he had a legal right to occupy or compelling him to allow her to enter into and remain in the house which he had and she had not a legal right to occupy. The 1976 Act gives the same rights to an unmarried man as it does to an unmarried woman living in the same household as husband and wife, but as in the majority of cases it will be the woman who invokes the Act, I propose to refer to her only.

It was held in B v B (Page 821, ante) that s 1 made no change in the substantive law. So far as spouses are concerned, as I have said, I agree that is the case. Not having changed the substantive law, it was held that it conferred no rights on an unmarried person coming within sub-s (2); so an unmarried woman could only obtain an injunction under sub-s (1)(c) or (d) (excluding the man from the home or requiring him to permit her to enter and remain in it) to support a legal right she had apart from the section. In that case Mr B, the tenant, had an indefeasible right as against Mrs B to continue in occupation by virtue of his tenancy and she had no legal right to occupy. In Cantliff v Jenkins (See p 840, ante), where, as in this case, the unmarried man and woman were joint tenants, Stamp LJ said that 'Put in laymen's language, what it [the section] does is to confer a remedy to protect a right'.

Violence is a form of molestation, but molestation may take place without the threat or use of violence and still be serious and inimical to mental and physical health. Where, as here, violence was used, it was not disputed that an injunction restraining it could be granted. Where other forms of molestation occur, it is probable that if it is of such a character that the court would be disposed to grant an injunction in respect of it, there would be a right of action for nuisance. If, however, the views expressed in B v B, in Cantliff v Jenkins (Page 836, ante) and by Cumming-Bruce LJ (See pp 879 et seq, ante) in the present case are right, it means that an unmarried woman, no matter what the degree of violence or other molestation threatened or used, will not be entitled to obtain an injunction excluding a man from what has been their home or one requiring him to allow her to enter and remain in it if he is the owner or tenant and she has no legal right to be there. A battered wife can get such injunctions; a battered mistress to whom sub-s (2) applies will not be able to do so unless she has a legal right to be in the home. The vast majority of women to whom sub-s (2) is intended to apply will have no such rights and so to interpret the section means that an unmarried woman is not given the same rights as a married one. An injunction to exclude the man from the premises may be necessary to protect the woman from violence and molestation but I do not see how an injunction requiring him to permit her to enter and remain in the house can be linked with protection from violence or molestation.

[1978] 1 All ER 1132 at 1145

Our task is to give effect to the intention of Parliament if that can be seen from the language of the statute. Here the language is clear and unambiguous and Parliament's intention apparent. Unmarried persons living together in the same household as husband and wife are for the purposes of s 1(1) to be treated as if they were married. The unmarried woman to whom sub-s (2) applies is to have the same rights as a married woman. A county court judge in the exercise of his discretion can grant an injunction excluding a husband from the home or requiring him to permit her to enter and remain there whether or not she has been subjected to or threatened with violence or molestation. In my opinion sub-s (2) entitles him to grant one to an unmarried woman if he would grant it were she married, if the circumstances warrant it and whether or not she has been threatened or molested. Just as a married woman can be protected from eviction from the matrimonial home, so can an unmarried woman coming within sub-s (2) be protected from eviction from what has been her home, it may be for a long time. A man who has been living with a woman as his wife in the same household may suddenly tell her to leave and she without violence or molestation may leave and become homeless. He may not say anything but just change the locks on the house when she is out and refuse to admit her. In such cases I do not doubt that it was Parliament's intention to protect her and in my opinion a county court judge now has power to do so.

To hold that protection can only be given if she has property rights is to differentiate between married women and unmarried women to whom sub-s (1) is intended to apply and would in my opinion frustrate the intention of Parliament. Subsection (1) is not concerned with property rights. Injunctions granted under it can interfere with the enjoyment of such rights, as I have said. In this case and in Cantliff v Jenkins (Page 836, ante) the man and woman were joint tenants but the fact that the woman is a joint tenant in my opinion makes no difference to and does not affect her rights under the subsection. It was not intended to provide a means for the enforcement of property rights but to give protection from domestic violence and from eviction. Reliance should not be placed on it for the enforcement of property rights. If an injunction has been granted under sub-s (1)(c) or (d), it is, I think, inconceivable that an order for possession should be made in favour of the man if he is the owner or tenant who has been living with her in the premises as his wife while the injunction is in force.

I recognise that to give effect to that intention means that an unmarried woman may get an injunction in a county court unobtainable by her in the High Court, an injunction excluding the man from premises of which he is the tenant or owner and to which she has no legal right, and an injunction entitling her to enter into and remain in premises which, if such an injunction is not granted, he or she would have no right to occupy. But it is within the competence of Parliament so to provide and in my opinion Parliament has done so, in clear and unmistakable language. By amending the Matrimonial Homes Act 1967, it has made a drastic inroad into the common law rights of the property-owning spouse. By s 1 it has also made a drastic inroad into the exercise of the common law rights of the owner or tenant of the home who has been living there with another person as husband and wife though unmarried.

In Cantiliff v Jenkins (See p 840, ante) Stamp LJ posed the question: how long would such an injunction last? He thought that as a practical matter it would be equivalent to a transfer of property order. With great respect I do not agree. Such an injunction will not affect the legal rights to the home. It will, or may, interfere with the enjoyment of those rights.

As I see it the main purpose of s 1 was to facilitate applications by those for whose benefit it was enacted for the speedy grant of orders protecting them from molestation and from being immediately evicted from the home in which, it may be, they

[1978] 1 All ER 1132 at 1146

had lived for many years (in B v B (Page 821, ante) the parties had been living together for ten years). Its purpose was the provision of immediate relief not permanent resolution of the situation arising on the break-up of a marriage or an association where the parties though unmarried had been living as if they were. It will be within the discretion of the county court judge to decide whether an injunction should be granted and to decide how long it shall operate. It would obviously be terminated should the spouses be recociled. In the case of spouses it might be followed by an application under the Matrimonial Homes Act 1967 and it may be that a county court judge in the exercise of his discretion would grant an injunction until further order and would make it clear that it would lapse if no application was made under the 1967 Act and, if such an application was made, only continued until an order had been made under it.

In the case of unmarried persons, where the injunction excludes the party who has property rights from his home or permits the party with no property rights to occupy it, a county court judge might think it right to make it clear that the injunction is to be of a temporary character to enable both parties to regulate their affairs. It appears that in this case the council granted the tenancy of the flat on account of the respondent's and her child's housing needs, and that she and the appellant became joint tenants of it at his instance and after she and the child had been living there without him for some three months. If this be so, then the council might have been willing to grant her the tenancy alone and, in view of what has happened, may now be disposed to terminate the joint tenancy and give her the sole tenancy; and the county court judge may think that the injunction should only continue until the council has dealt with the matter.

Were it not for what my noble and learned friend, Lord Diplock, has said with regard to the departure from precedent made by the majority of the Court of Appeal in the present case, I would have felt it necessary to write at some length on the question whether the Court of Appeal is entitled not to follow an earlier decision of that court which is not distinguishable. My noble and learned friend has dealt so fully with that and I am in such complete agreement with what he has said that it is not necessary for me to do so. That question was conclusively, and one would have hoped finally, settled by the decision in Young v Bristol Aeroplane Co Ltd, a court indeed of all the talents consisting as it did of Lord Greene MR, Scott, MacKinnon, Luxmoore, Goddard and du Parcq LJJ.

Since then one new factor has arisen and I wish to add a few observations with regard to that. Prior to 1966 this House treated earlier decisions made by it which were not distinguishable as binding. It was left to Parliament to amend the law laid down by the earlier decisions if in the light of modern conditions it was felt that that decision should no longer be followed. Owing to pressure on Parliamentary time this sometimes led to no action being taken or to its being taken only after long delay. In 1966 consideration was given to whether as a matter of law this House was bound to follow its earlier decision. After considerable discussion it was agreed that it was not, and so the announcement^g to which my noble and learned friend, Lord Diplock, refers was made. 'If the House of Lords is not bound by its previous decision, why should we be?' So the argument runs, an argument that could be advanced in every court of record in the land, but an argument which ignores the unique character of the House of Lords sitting judicially. It is a character not possessed by any other court and herein lies the fallacy in the argument. This House is not bound by any previous decision to which it may have come. It can, if it wishes, reach a contrary conclusion. This is so whether or not the House is sitting to discharge its judicial functions. That is the ground on which those who were parties to the announcement made in 1966 felt, I think, that it could be made without impropriety. It is not a ground available to any

^g     Note [1966] 3 All ER 77, [1966] 1 WLR 1234

[1978] 1 All ER 1132 at 1147

other court and the fact that this House made that announcement is consequently no argument which can properly be advanced to support the view that the Court of Appeal or any other court has similar liberty of action.

There is one other matter to which I must refer. It is a well and long established rule that counsel cannot refer to Hansard as an aid to the construction of a statute. What is said by a Minister or by a member sponsoring a Bill is not a legitimate aid to the interpretation of an Act^h. As Lord Reid said in Beswick v Beswick ([1967] 2 All ER 1197 at 1202, [1968] AC 58 at 73, 74):

^h     Craises on Statute Law (7th Edn, 1971) pp 128, 129

'In construing any Act of Parliament we are seeking the intention of Parliament, and it is quite true that we must deduce that intention from the words of the Act ... For purely practical reasons we do not permit debates in either House to be cited: it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in select committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable, would throw no light on the question before the court ... '

If it was permissible to refer to Hansard, in every case concerning the construction of a statute counsel might regard it as necessary to search through the Hansards of all the proceedings in each House to see if in the course of them anything relevant to the construction had been said. If it was thought that a particular Hansard had anything relevant in it and the attention of the court was drawn to it, the court might also think it desirable to look at the other Hansards. The result might be that attention was devoted to the interpretation of ministerial and other statements in Parliament at the expense of consideration of the language in which Parliament had thought to express its intention. While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.

For the reasons I have stated I would dismiss this appeal.



LORD KILBRANDON.

My Lords, it is a sad paradox that human brutality should be disclosed so plainly in domestic relationships into which a man and a woman have voluntarily entered. Recently some enterprising journalist has christened the problem 'battered wives', as if he had uncovered a modern tendency, a recent development in wickedness, and indeed Lord Denning MR says that the phrase 'was invented so as to call the attention of the public to an evil. Few were aware of it' (See p 846, ante). In many more humble circles the practice was only too familiar, and to anyone who has sat as a divorce judge, at any rate, none of the stories told in the public press can have come as a surprise. They are instances of what had long been matter of common knowledge. In 1975 the House of Commons set up a select committee to consider, inter alia, 'the extent, nature and causes of the problems of families where there is violence between the parties or where children suffer non-accidental injury.' These words, it is hardly necessary to point out, are wide enough to include families in which the parties are unmarried and the children illegitimate. I did not intend to refer to the report of the select committeeⁱ further than to say that I agree with the opinion of my noble and learned friend, Lord Diplock, as to the notice which may in general be taken of such reports in judicial proceedings.

ⁱ     Report from the Select committee on Violence in Marriage (H of C Papers (1974-75) 553-i

[1978] 1 All ER 1132 at 1148

In the following session a Bill, which became the Domestic Violence and Matrimonial Proceedings Act 1976, was introduced by a private member into the House of Commons. It may be, I do not know, that the matters it dealt with were deemed to be of such urgency that the usual researches, necessary to anticipate and deal with all contingencies likely to attend reform of a complicated branch of the law, were omitted or abridged. However that may be, in the short lifetime of the Act the problem now before your Lordships arising out of one of its provisions has had to be considered by 16 Lords Justices and Lords of Appeal, of whom eight have taken one view of the meaning of the Act and eight an opposite view.

As regards married couples and their families, ss 3 and 4 make certain provisions amending and clarifying the Matrimonial Homes Act 1967, and need not be further referred to. By ss 1 and 2 the scope of the rights of married persons, on behalf of themselves or their children, to obtain the protection of the court in the event of molestation, violence or unlawful denial of the right of a spouse, arising from status, to access to and occupation of the matrimonial home is enlarged. Besides exercising these rights in a matrimonial suit, or on an undertaking that a matrimonial suit is in preparation, a summary application may be made to any county court for an injunction containing one or more of the provisions set out in s 1, and in certain circumstances the court may, under s 2, buttress that injunction by attaching a power to arrest the party complained of. Such an application may be made, contrary to the general rule of practice, 'whether or not any other relief is sought in the proceedings'. So far no difficulty arises.

It is, however, notorious, as the terms of reference of the select committee indicate, that the problems of violence, molestation and denial of proper accommodation are by no means confined to families in which the parties are married. Unmarried women and illegitimate children are just as much at risk. It is in my opinion quite plain that the intention of Parliament was to give them some protection. For that purpose s 1(2) provided that the subsection conferring power on the county court to grant injunctions in the case of married persons--

'shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.'

It is unfortunate that this has been described, in popular language, as an attempt to protect 'battered mistresses'. The English language is poor in this context. 'Mistress', having lost its respectable if not reverential significance, came to mean a woman installed, in a cladestine way, by someone of substance, normally married, fo his intermittent sexual enjoyment. This class of woman, if indeed she still exists, is not dealt with by the 1976 Act at all. The subsection was included for the protection of families (households in which a man and a woman either do or do not bring up children), the man and the woman being, for whatever reason, unmarried. The Act says in so many words that in such a case the woman is to have a 'matrimonial home' insofar as the provisions of ss 1 and 2 of the Act are concerned, and as regards her home she is to have the same protection, and the same power to apply to the county court for them, including an order for arrest, as has her married sister. I do not know a single English word which will accurately describe the unmarried housewife, but that is what Parliament is talking about.

Coming to the interpretation of the Act as it applies to the facts of the instant case, I will begin by saying that I have read in draft the speeches prepared by my noble and learned friends, Lord Salmon and Lord Scarman, and that I entirely agree with them. The difficulty which has given rise to so much difference of judicial opinion is this. It is plain, as I have tried to point out, that married persons get nothing out of ss 1 and 2 of the Act except, first, access to the summary powers of any county court, second, the relaxation of the rule as to 'any other relief' and, third, the supplementary weapon of arrest. No legal rights are conferred, in the sense of causes of action giving rise to

[1978] 1 All ER 1132 at 1149

judicial remedies. The benefits are described, quite fairly, as procedural. If, then, it is said on behalf of the appellant, no causes of action are made available to married persons, neither are they to the unmarried. Since unmarried persons did not have the relevant statutory protection equivalent to that enjoyed by married persons, namely the right of one to restrain the other from entering the matrimonial home, even when that other is joint or sole tenant, and they cannot be said to have acquired it by virtue merely of an enlargement of available procedures, this application should have been dismissed, since the Act provides the respondent with no means of overriding the property right of the other joint tenant. The supposed protection of unmarried women under this Act accordingly turns out to be largely illusory since it amounts to no more than procedural advantages available to a woman who has the sole right of occupation, whether as owner or tenant, of what the statute calls her 'matrimonial home'. This, in the social conditions with which we are all familiar, must be a rare bird indeed.

I can readily appreciate the intellectual force of the appellant's argument. On the other hand I must decline to hold that Parliament decreed a trifling and illusory remedy for a known disgraceful mischief, and to hold it in the interest of the conceptual purity of the law. Leaving that interest aside, the plain fact is that the 1976 Act has authorised county courts to give one married person an injunction excluding from the matrimonial home the other, saying nothing about the property rights of either, and that that authority applies to a household where the parties are not married to one another 'as it applies' to one where they are. That is sufficient for the disposal of this case.

In Inland Revenue Comrs v Ayrshire Employers Mutual Insurance Association Ltd it was given as an adequate ground of decision that 'The legislature has plainly missed fire': per Lord Macmillan ([1946] 1 All ER 637 at 641). Whether that metaphor leads to a rational interpretation of statutes may nowadays be doubted, but certainly it would be an inevitable commentary on a decision in favour of the appellant. The intention of the legislature is plain from the language used. The fact that that language also leads to legal difficulties, and that the intention could well have been expressed in language which did not, should not affect the result.

My Lords, I do not find it necessary to add anything to what has been said by my noble and learned friends on the subjects of the handling of precedents by the Court of Appeal, and of judicial reference to the Parliamentary debates. I entirely agree with their opinions.

I would dismiss this appeal.



LORD SALMON.

My Lords, the Domestic Violence and Matrimonial Proceedings Act 1976 appears to have been hurried through Parliament to provide urgently needed first aid for 'battered wives', about whom there had been a great deal of publicity. They included a lawfully wedded woman living with her husband in their home and also an unmarried woman, commonly but not very appropriately referred to as a 'common law wife', living with her paramour in the equivalent of a matrimonial home. I do not consider that there is any ambiguity about the Act and I have no doubt that it will afford much needed first aid to many married and unmarried women. I regret that the Act omits a clause regulating the duration of the aid it affords in relation to the occupancy of the matrimonial home by an unmarried woman. Such a clause could easily have removed the difficulties which I think may well arise under the Act in its present form and to which I shall return later.

Section 1 of the 1976 Act reads as follows:

[1978] 1 All ER 1132 at 1150

'(1) Without prejudice to the jurisdiction of the High Court, on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely,--(a) a provision restraining the other party to the marriage from molesting the applicant; (b) a provision restraining the other party from molesting a child living with the applicant; (c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included; (d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home; whether or not any other relief is sought in the proceedings.

'(2) Subsection (1) above shall apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.'

I have no doubt that the opening words of s 1(1), 'without prejudice to the jurisdiction of the High Court', refer to two things: firstly to the jurisdiction of the High Court to grant injunctions restraining violence. The word 'molesting' in s 1(1)(a) and (b) certainly includes acts and threats of violence. They no doubt cover a multitude of other things which I will not attempt to enumerate. When an injunction is granted under para (a) or (b), it will, I think almost invariably, be in respect of acts or threats of violence or possibly sometimes in respect of nuisance. In any event, I cannot think of anything in respect of which the county court would grant an injunction under para (a) or (b) which the High Court would not also have jurisdiction to grant.

Secondly, the opening words of s 1(1) in my view, also refer to the jurisdiction of the High Court under s 1(2) of the Matrimonial Homes Act 1967 (as amended by ss 3 and 4 of the 1976 Act) (a) to prohibit, suspend or restrict the exercise by either spouse of the right to occupy the matrimonial home or (b) to require either spouse to permit the exercise by the other of that right. A similar jurisdiction is conferred on the county courts by s 1(1)(c) and (d) of the 1976 Act. It follows therefore that s 1(1) effected no change in the substantive law relating to husbands and wives. All it did was to enable the same kind of redress from the county court as they could have obtained from the High Court and (having regard to the closing words of s 1(1)) to obtain it without seeking any other relief. If the Family Division makes an order under s 1(2) of the 1967 Act (as amended) or the county court makes an order under s 1(1)(c) or (d) of the 1976 Act prohibiting a spouse, say the husband or paramour, who is the freeholder or tenant of the matrimonial home from occupying it and permitting his wife or mistress to do so, that order whilst it remains in force would be a complete answer to an action in the Queen's Bench Division by the freeholder or tenant to enforce his proprietary rights by ejecting his wife so that he may re-enter into possession himself.

In my opinion, it by no means follows that because s 1(1) involves no alteration in substantive law, s 1(2) does not. The latter subsection is very short and equally clear. It has been said that its meaning is as plain as a pikestaff. I agree. If one were in any doubt about it, it would only be necessary to strike out of s 1(1) the words 'on an application by a party to a marriage' and substitute the words 'on an application by a man or a woman who are living with each other in the same household as husband and wife'; and perhaps in order to tidy up the section also to strike out the words 'to the marriage' in para (a) of s 1(1).

The whole purpose of the Act was to afford some protection to 'battered wives', married or unmarried. And to the unmarried ones in particular. The married already had the very full protection afforded by the 1967 Act. The unmarried did not. The married gained little from the 1976 Act save a quicker and cheaper method

[1978] 1 All ER 1132 at 1151

of obtaining protection and also the power of arrest attached to an injunction granted under s 2 of the Act. To my mind, the principal object of s 1(1)(c) and (d) combined with s 1(2) was to allow the battered so-called 'common law wife' safely to occupy the 'matrimonial home' for a fairly short period in which to find other accommodation for herself and her children if she had any. I do not think that a county court judge could properly exclude the paramour from his home or its environs under s 1(1)(c) unless he had been guilty of serious molestation likely to expose the common law wife or her children to serious danger or intolerable conditions whilst he remained there. Nor do I think that the county court judge would or could properly make an order under s 1(1)(d) unless he was satisfied that the common law wife had been driven from the home by serious molestation or locked out of the home without reasonable justification. It also seems unlikely to me that the county court judge would, save in exceptional cases, make an order under s 1(1)(d) without also making an order under s 1(1)(c).

In my view, Parliament in passing this Act, was concerned not with the preservation of proprietary rights but with affording protection to 'battered wives' by giving them the chance of finding fresh accommodation in safety when the husband or paramour had made life in the matrimonial home intolerable, impossible or dangerous.

More often than not, the man is the tenant or owner of the home. If in the case of an unmarried couple he is immune under s 1(2) from the provisions of s 1(1)(c) and (d) and under s 2(2) from the provisions of s 2(1)(c), what I regard as being the chief purpose of the Act will be defeated. This is why I do not think that Parliament intended any wider construction than that which I have already postulated to be put on the opening words of s 1(1). The wider construction of the opening words of s 1 postulates that they are intended to include a power of the High Court to eject a man's wife or so-called 'common law wife' from the matrimonial home, if the husband or paramour is the owner or tenant of the premises. I reject that construction because as I have already indicated it would defeat the obvious purpose of the Act. Ample scope, in my view, is given to the opening words of s 1 if they are confined to the meanings I have suggested.

The proposition initiated by Bridge LJ in B v B (See p 827, ante) and adopted by many other eminent judges that the wider construction should be put on those opening words because in cases in which the so-called 'common law wife' is the tenant or the owner of the home, she will still have the benefit of s 1(1)(c) and (d) and of s 2(1)(c) does not appeal to me, firstly because I think that there are very few women in cases of this kind who are the tenants or owners of the matrimonial home, and secondly because when they are they have no need to rely on the 1976 Act for protection. They would be entitled to bring an action for ejectment against the paramour to which there could be no defence.

To return to the case where the paramour is the tenant or owner of the home, I am certain that the 1976 Act was not intended to deprive him of his proprietary rights in his flat or house but only to interfere for a fairly short period with his occupation of his home whilst his former mistress had an opportunity to look for other accommodation. In Cantliff v Jenkins (See p 840, ante) Stamp LJ asked the very pertinent question 'for how long?' It is a pity that the Act did not regulate the period in which he could be deprived of occupation and his former mistress allowed to enjoy it. It is hoped that Parliament may consider amending the Act by specifying such a period or, perhaps better still, laying down principles on which its duration may be calculated. In the meantime the period is entirely in the discretion of a multitude of county court judges and there being nothing in the statute to guide them in the exercise of that discretion, it might be exercised with a considerable amount of discrepancy. I am sure, however, that those exercising the discretion will understand that to make

[1978] 1 All ER 1132 at 1152

a final order for a maximum period would probably convert it into a minimum period. I would hesitantly express the view that the best course would be to make an order for say a month with liberty for both parties to apply. Much depends on the circumstances of each case, but I find it difficult to believe that it could ever be fair, save in most exceptional circumstances, to keep a man out of his own flat or house for more than a few months. It must also be remembered that under the Act the former mistress acquires no proprietary right in the premises in question and there is nothing to prevent the man from selling or letting his own property whenever he likes. But this would take a little while and would accordingly prevent the former mistress from being thrown out without giving her any breathing space in which to look for suitable accommodation. And this, I believe, is the major object which the Act sought to achieve, first aid but not intensive care for 'battered wives'.

I would add a word about cases in which, as here, the premises in question are held in common. There is no doubt that under the Act a violent man may be excluded for a limited period from the 'matrimonial home'. I cannot however agree that his exclusion can properly be made to continue for as long as there is a danger that if he returns he will assault his former mistress. This might well be for ever. I do not think that the purpose of the Act is to punish the violent. Property held in common need not be lived in by both owners: one could buy the other out or the property could be sold and the proceeds divided between them. In the absence of agreement the matter could be referred to the courts for decision. In the present case, however, the flat is a council flat and I do not suppose there is anything to sell. I expect that probably the council may bring the joint tenancy to an end and decide to whom the flat shall be let. Having regard to the learned county court judge's finding that the appellant who was twice the respondent's age beat her frequently, on two occasions 'used violence of a horrifying nature', threatened to kill her and dump her in the river and alternatively to chop her up with a chopper he kept under the bed and then put her remains in the deep freeze, I should not be surprised if the council after terminating the joint tenancy allowed the respondent to remain in the flat as its sole tenant.

I entirely agree with your Lordships that in appeals in civil cases, the Court of Appeal is bound by its own previous decisions subject to the three exceptions laid down in Young v Bristol Aeroplane Co Ltd. Although the balance of authority prior to 1944 supported that rule, there had been a number of dicta and decisions of the Court of Appeal (alluded to by Lord Denning MR (See pp 853-855, ante)) which had rejected it. That is why the appeal in the Bristol Aeroplane case was heard by Lord Greene MR and five out of the eight Lords Justices who then sat regularly in that court.

Ever since 1944 this rule has been applied by the Court of Appeal except in the instant case. Your Lordships' House on a number of occasions (once before and three times after 1944) has confirmed the application of the rule to decisions of the Court of Appeal, and has thereby greatly strengthened the rule. In the nature of things however, the point could never come before your Lordships' House for decision or form part of its ratio decidendi. This House decides every case that comes before it according to the law. If, as in the instant case, the Court of Appeal decides an appeal contrary to one of its previous decisions, this House, much as it may deprecate the Court of Appeal's departure from the rule, will nevertheless dismiss the appeal if it comes to the conclusion that the decision appealed against was right in law.

I am afraid that I disagree with Lord Denning MR when he says that the Court of Appeal is not absolutely bound by its own decisions and may depart from them just as your Lordships may depart from yours. As my noble and learned friend, Lord Diplock, has pointed out, the announcement made in 1966 by Lord Gardiner LC^j

^j     Note [1966] 3 All ER 77, [1966] 1 WLR 1234

[1978] 1 All ER 1132 at 1153

about the future attitudes of this House towards precedents ended with the words: 'This announcement is not intended to affect the use of precedents elsewhere than in this House.' I would also point out that that announcement was made with the unanimous approval of all the Law Lords, and that, by contrast, the overwhelming majority of the present Lords Justices have expressed the view that the principle of stare decisis still prevails and should continue to prevail in the Court of Appeal. I do not understand how, in these circumstances, it is even arguable that it does not.

I sympathise with the views expressed on this topic by Lord Denning MR, but until such time, if ever, as all his colleagues in the Court of Appeal agree with those views, stare decisis must still hold the field. I think that this may be no bad thing. There are now as many as 17 Lords Justices in the Court of Appeal, and I fear that if stare decisis disappears from that court there is a real risk that there might be a plethora of conflicting decisions which would create a state of irremediable confusion and uncertainty in the law. This would do far more harm than the occasional unjust result which stare decisis sometimes produces but which can be remedied by an appeal to your Lordships' House. I recognise, as Cumming-Bruce LJ points out (See pp 880, 881, ante), that only those who qualify for legal aid or the very rich can afford to bring such an appeal. This difficulty could however be surmounted if when the Court of Appeal gave leave to appeal from a decision it has felt bound to make by an authority with which it disagreed, it had a power conferred on it by Parliament to order the appellants and/or the respondents' costs of the appeal to be paid out of public funds. This would be a very rare occurrence and the consequent expenditure of public funds would be minimal.

I do not agree with the reasons given by Sir George Baker P for departing from the rule in the Bristol Aeroplane case. A high proportion of the decisions of the Court of Appeal turn on the construction of statutes. The fact that the decision concerns a recent statute is, to my mind, irrelevant. Shaw LJ's decision however is based on the ground that the most exceptional and appalling facts of the present case were never in the contemplation of the Court of Appeal in the Bristol Aeroplane case, and I confess that I find the reasons on which he founded his decision very persuasive. I need not however express any opinion on that judgment for I agree with my noble and learned friend, Lord Diplock, that the exception formulated by Shaw LJ is what may be termed a 'one-off' exception and that it is difficult to think of any other statute to which it could apply. I therefore entirely agree with your Lordships that the rule laid down in the Bristol Aeroplane case binds the Court of Appeal.

I also agree that it has always been a well-established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose. The reasons for this rule have been lucidly expressed by Lord Reid in Beswick v Beswick ([1967] 2 All ER 1197 at 1202, [1968] AC 58 at 74), and also by my noble and learned friend, Viscount Dilhorne, in his speech in this appeal.

It is now well settled that when legislation follows on the report of a select committee, as eg the 1976 Act followed on the report published in 1975 of the Select Committee of the House of Commons on Violence in Marriage^k, it is permissible for the courts, when necessary, to refer to the report as a guide to the mischief at which the Act was aimed. Even for this purpose, however, such reports are sometimes uncertain guides. They do not by any means always reveal the full mischief which the Act was intended to remedy. In the present case for example, the select committee devoted only one paragraph to unmarried couples. They stated they had no real knowledge of this problem and had taken no evidence about it. This is of little consequence because, in my view, the